By Jess Clarke
The UNC School of Law Supreme Court Program has notched a victory — even before a final outcome — with the U.S. Supreme Court’s recent granting of the Program’s petition for a writ of certiorari in a criminal case raising double jeopardy issues.
The Court’s action in June is good news for the client, and good news for Carolina Law’s Supreme Court Program, potentially transformative. If the Supreme Court overrules the lower court’s decision, it would impact cases nationwide.
“The true excitement of the moment is to have a win at the major league level,” says Andy Hessick, UNC’s Judge John J. Parker Distinguished Professor of Law, who runs the Supreme Court Program with Wiley Rein, LLP partner Rick Simpson ’77. “This makes our reputation that much stronger. We’re definitely on the map now.”
The case that put Carolina Law’s program on the map is McElrath v. Georgia, in which UNC’s client, Damian McElrath, was charged with two crimes that stemmed from the same incident. He was convicted of one crime but found not guilty by reason of insanity for the other.
The Georgia Supreme Court ruled that the two verdicts were so inconsistent with one another that they were legally “repugnant”—meaning neither verdict was valid, and McElrath could be retried on both charges.That court rejected the argument that the Fifth Amendment’s Double Jeopardy Clause prohibits a second prosecution on the acquitted charge.
Carolina Law’s cert petition challenges that decision.
The Supreme Court decision to grant review has important ramifications legally and for students in the Supreme Court Program. And it reflects impressively on the program for another reason: it’s rare.
How rare? Adam Gillette ’23, who worked on the cert petition as a Carolina Law student in the program, was (almost) speechless soon after he heard the news. He sent an email to Hessick with just a subject line: “OH MY GOD.”
Estimates vary, but out of 7,000 to 10,000 petitions filed annually, the Supreme Court typically grants certiorari and hears oral arguments in 65 to 80 cases.
“It’s very gratifying to have the Supreme Court hear the case. I’m pleased by that…It also was the culmination of three years of my legal education,” says Gillette, now a judicial law clerk for the U.S. District Court for the Eastern District of Louisiana.
Although Gillette has graduated, other Carolina Law students will continue what he helped start with his work on the McElrath v. Georgia cert petition. They’ll work on briefs, help prepare oral argument, and observe or participate in moot courts.
The writ of certiorari “represents an extraordinary opportunity for students to participate in assisting with the representation of a client at the merits stage of a case in the Supreme Court,” Simpson says.
“From a legal standpoint, we believe that the decision of the Georgia Supreme Court departed significantly from the United States Supreme Court’s precedents regarding the Double Jeopardy Clause. The grant of the petition gives us an opportunity to urge the Court to correct that error,” says Simpson, who’ll argue the pro bono case before the Court, probably in November or December.
The Supreme Court’s decision to grant review has an immediate impact on McElrath v. Georgia.
The case “will be heard on the merits, with briefing, oral argument and a decision. Our client will not be subjected to a second trial on a charge of which he was acquitted until the court has a chance to decide the case,” Simpson says. “I think the Court recognized that the Georgia Supreme Court’s decision holding may well contradict the Court’s Double Jeopardy precedents.”
Hessick, Simpson and Wiley attorney Elizabeth Fisher ’19, a former Hessick student, represent McElrath, the petitioner. Hessick is optimistic the Supreme Court will overrule the lower court.
Students in the Supreme Court Program have helped prepare six petitions for a writ of certiorari since the program was established in 2019. They’ve also helped with 11 amicus briefs and an opposition to a petition for a writ of certiorari in the program.
The informal partnership between Carolina Law and Wiley is highly beneficial because of the firm’s resources and Simpson’s and Fisher’s Carolina Law connection. “It takes a lot of infrastructure to produce the briefs. You need a lot of paralegal help and help with other costs,” Hessick says.
The writ in McElrath v. Georgia underscores the invaluable experience students gain in the Supreme Court Program, from participating in client discussions and briefings to giving input on strategies. “They get to see the highest level of argument, where people are trying to help develop the course of law,” Hessick says.
Gillette’s work on the cert petition included drafting, revising and editing versions of the document, which they filed in January. “It really was a team effort,” he says.“It was a chance to work with Andy, Rick and Elizabeth, who are excellent attorneys, and I learned a lot from each of them.”
He also tapped what he learned in the Supreme Court Program and Carolina Law’s nationally recognized 1L Research, Reasoning, Writing and Advocacy (RRWA) program to help with the petition.
The RRWA program, in which Gillette built skills in making persuasive arguments, “gave me a very solid base of knowledge to approach legal writing,” he says. Gillette developed that knowledge under the “excellent” and “thoughtful” instruction of Rachel I. Gurvich, Clinical Associate Professor of Law and Gillette’s RRWA professor both semesters of his 1L year. “To use it for something as significant as the cert petition was rewarding.”
In the Supreme Court Program, he benefited from classmates’ feedback in a workshop type of environment. “As a class, we worked together to identify conflicts among decisions in lower courts nationwide that might be ripe for the Supreme Court’s review. Andy and Rick consistently encouraged us to dig deeper into the reasoning underpinning each decision, and my classmates’ questions during my case presentations required me to have command of the details of each case. I learned a ton about how to read decisions very carefully to understand how the way one court applied the law is different from the way another court applied it. That’s definitely a skill I will continue to refine throughout my career,” Gillette says.
Hessick believes his program provides students with an unusually impactful law school experience that will inform their careers. “I would love to continue down this path, having students participate in cases like this and see what it’s like to litigate before the court. It would be a really good experience for them,” he says.
For Gillette, his cert petition work will be an inspiration for pro bono cases in the years ahead.
“Most attorneys go through their careers and never get to be a part of something like this. But I can point to a lot of people in my corner who helped make it happen,” he says. “It was unquestionably a highlight of my law school experience.”